Litigation: 5 things your outside counsel won’t tell you

In the new economy, both in-house and outside counsel have become better at doing business together. Indeed, in response to rightful demands by corporate clients, law firms have prioritized the demonstration and delivery of value with an eye toward return on investment and the bottom line. As a result, everyone has benefited from setting and meeting measureable goals, managing risk and avoiding surprises. The legal profession, however, remains a service business, and that paradigm often keeps outside counsel from telling their in-house clients what’s really on their minds. Here’s a list of things that outside counsel may not want to say, but that, when acknowledged, can lead to better (and less costly) service, better representation and a better overall attorney-client relationship.

1. We all need to be on the same page.

Although feedback from in-house counsel is always valuable because vetting makes a case stronger, outside counsel often has a hard time sorting out different messages from different members of an in-house team. When in-house counsel teams coordinate their messages to outside counsel about litigation decisions—such as, for example, revisions to an imminent filing—outside counsel can more efficiently provide services in line with the client’s unanimous expectations. This is inevitably more cost-effective for the client, because outside counsel spends less time trying to reach a consensus among an in-house counsel team’s messages, and more time focusing on delivering excellent service concerning the task at hand.

2. Outside counsel can do many things, but we can’t read minds.

Outside counsel can’t help in-house counsel fit a case into the big picture if they only see half the picture. We don’t set out to create or implement litigation strategies that are inconsistent with future business plans, but we can’t know of those business plans unless in-house counsel fills us in. Therefore, it’s best to let outside counsel know and understand both the business objectives behind a discrete piece of litigation and the overall strategy that’s driving the business. Outside counsel also needs to know if and when that strategy changes. Keeping outside counsel apprised of business plans that impact litigation allows for time to implement any necessary pivots in litigation and to better plan a trial strategy that aligns with business needs. This increases the value of the representation in both pending and future litigation.

3. There are some things that are just out of our control.

It’s important to understand those parts of litigation where quality advice and guidance from outside counsel provides an advantage and, conversely, those parts that outside counsel simply can’t control. In-house counsel may be stuck with fact witnesses whose story, demeanor or likeability hurts a case. Or a judge who doesn’t manage discovery well or who sits on important pending motions for too long may be assigned to a case. Even the most effective and strategic outside counsel cannot exert control over a judge whose timing or management style is at odds with the case. Similarly, no outside counsel can convert a forensically unattractive witness into Gregory Peck.

But outside counsel can and should help with issues such as selecting expert and 30(b)(6) witnesses, and managing discovery requests to reduce business interruptions. Communicating business objectives (see point two above) helps outside counsel wisely assess the best experts for your case (and you should never accept an expert you don’t feel good about), as well as the individual or individuals best suited for a 30(b)(6) deposition. Similarly, a better understanding of impacted business processes allows for smoother and less expensive discovery processes, such as the preservation and collection of relevant documents.

4. Despite efficiencies, e-discovery is (still) expensive.

Outside counsel knows that e-discovery costs rightly drive in-house counsel nuts. Our firm has invested in in-house data storage capacity and an on-site document review center in order to create a wholesale pricing option for our clients. We also use an approach designed to more quickly identify what’s really needed for litigation with as small an impact to our clients’ business operations as possible. We also work hard to have substantive e-discovery meet-and-confers with opposing counsel to keep a lid on costs, and we’ve implemented a legal project management program to better assess overall expectations on performance and budget needs. In-house counsel should demand these same kinds of efficiencies from their outside counsel. Nonetheless, in-house counsel should recognize that e-discovery is expensive and time-consuming.

5. A bird in the hand . . .

Trial lawyers like going to trial and there’s nothing that makes us happier than standing before a judge and a jury. But sometimes a case goes so well that in-house counsel starts to think there is no risk in taking a case to trial. Despite a trial lawyer’s love of the game, however, both in-house and outside counsel need to remember that risk is always and forever inherent when going to trial. If a company can meet and achieve a business objective through settlement, in-house counsel should not lose sight of that goal. Remember, sometimes a bird in hand is worth more, especially if the two in the bush present a real threat to business strategies and objectives.

Conclusion

The role of outside counsel is to best serve our clients and provide superior legal representation in litigation. This role rightly places a burden on outside counsel to align that service with our clients’ goals and objectives. In-house counsel, however, can do themselves, and their businesses, a great service in helping outside counsel fulfill that role by knowing and understanding the constraints under which outside counsel operates. By acknowledging outside counsel’s perspective, in-house counsel can help create an environment in the attorney-client relationship that permits for greater cost control, better alignment with business strategies and less uncertainty in outcomes. This, of course, is what each of us strives for.